Monday, August 1, 2011

News report of rape that turned out to be false suggests that news media needs to proceed with greater care

The following news story raises critically important issues about the way rape claims are covered by the mainstream news media. The issues are complex, and do not lend themselves to simplistic analyses. Respect for the rights and dignity of the falsely accuser and the presumptively innocent suggest a need for greater care and balance in the way these stories are reported.

Last Tuesday, KATU News in Portland reported that a rape had occurred. Even though the only evidence was the accuser's word, the news report started off as follows:  "Gresham police detectives are searching for two men who sexually assaulted a woman behind a book store in broad daylight."  That was misleading. The story labeled the accuser as the "victim" and noted that she "told police she was getting into her blue minivan, which was parked along the west side of the bookstore . . . .when two men grabbed her, pulled her to a secluded area behind the store and then sexually assaulted her."  And: "The only description of the suspects is two adult males."

At no point did the news report that it was possible the claim might be false.  This was so even though Sgt. Claudio Grandjean of the Gresham Police said this of the woman's accusation: "This is extremely, extremely unusual . . . ." The news report noted: "Grandjean said during his 24 year career he's never seen a case quite like this one."

The rape report turned out to be false.  See here:   Danielle Hayes, 35, told police it was a lie.  Police refused to reveal the false accuser's motivation.  "It is extremely rare to have someone fabricate charges of this magnitude, and real victims of real crimes should never be afraid to approach the police," said Gresham Police Chief Craig Junginger.

Despite the tone of the original report, it turns out that police weren't sure a rape had occurred even early on. "Early in the investigation, police had some 'initial reservations' because Hayes could not provide any information as to the appearance of the two men and couldn't narrow down a time or exact location of the crime."  (Those are among the primary red flags that law enforcement looks for in assessing the credibility of rape accusers.  J. Savino, B. Turvey, Rape Investigation Handbook,  at 286-87 (2d ed. 2011).)  "Still," the news report noted, "police continued their investigation until Hayes revealed the crime never took place."  (See here.)

So what to make of the initial news report?  There are several competing interests at play here that suggest reporting on rape claims is a delicate endeavor, and that news outlets don't do a good job balancing them. Let's use the story above to illustrate our points.

First, there is what can be called an investigative interest. In the initial report, the one that indicated a rape had occurred even though the reservations police had about the accuser's veracity were not reported, police were seeking information from the general public about the alleged crime. "Gresham police hope anybody who saw anything suspicious July 25 near the Border's bookstore that might have been related to this incident to call the Gresham Police Tip Line at 503-618-2719."  See here.  Seeking firsthand information about a potentially serious crime through the public airwaves is inarguably prudent.  Law enforcement officials may believe that casting suspicion on the accusation would not be helpful in getting witnesses to come forward. In this sense, law enforcement is using the electronic news media to help its criminal investigation. 

Second, there is the interest of rape victims in general. By not casting doubt on the initial rape accusation here, the initial report treated rape reports in general with dignity and respect. For a crime that can be embarrassing to report, that is important. The words used here were not the right words, but it is important to treat rape claims with respect, even if police have reservations about them.

Third, there is the interest of the presumptively innocent. No specific suspect was identified in the report, and the false accuser's vague description may have been purposefully intended to insure that no innocent man was punished for her claim. But sometimes even vague reports not intended to hurt anyone lead law enforcement to target specific men, with occasionally disastrous results for them.

The principal problem with the way rape claims are reported is that news outlets ignore their effect on the presumptively innocent who are arrested for the crime and named.  We have seen this innumerable times in the past several years. It is impossible to maintain anything resembling the presumption of innocence, much less a good reputation in the community, when a news report is delivered while the investigation is ongoing that leaves no question that (1) a rape occurred and (2) that a named male has been arrested for it. Often, news reports describe the alleged crime in grisly detail, and include snippets of fearful residents giving their reactions to the news.  All of this serves to paint the named suspect in a most heinous light.

A good example was the Hofstra case where four innocent minority young men were painted as vile rapists in news accounts that were purposefully frightening.  (See here.) Scroll down to the television coverage of the alleged Hofstra rape by reporter Bonny Ghosh whose report of the alleged rape started out with these words: "She was tied up in a men's bathroom stall where five men, one by one, would rape her."  That report left no doubt that a rape occurred and that the four men arrested were responsible for it. As in this case, the police had concerns about the accuser's story early on, but that didn't stop the news media from smearing four innocent minority young men.

Putting aside the question of whether persons accused of sex crimes should be afforded anonymity (an issue that merits extended analysis), where, in fact, police have legitimate reservations about a rape accusation, or where police are still investigating the claim, news outlets need to avoid reporting rape claims by using conclusory language suggesting a rape definitely occurred--e.g., "police say a woman was raped and the victim was dragged behind the bushes."  More balanced language should be employed --e.g., "A woman claimed she was raped behind a bookstore and police are investigating." And: "the woman said she was dragged behind the bushes."  Language matters.

People watching the news generally assume that the stories are based on fact and are supported by evidence. In fact, most viewers likely believe the local news broadcast is more apt to tell the whole story than is a trial, where, it is believed, arcane legal objections keep vital information out of evidence.  In fact, viewers might be very surprised to learn that the mainstream news media reports rape claims by doing nothing more than giving the police department's santitized version of it -- a version that never reveals any of the pitfalls that police are investigating and that cast doubt on the veracity of the claim.

Fourth, there is a commercial interest.  This one isn't as important as the interest of the presumptively innocent, but it is important nonetheless.  In the story above, the alleged rape occurred outside a nationally known bookstore chain and was, as one report put it, "disturbing because of the false impression it gave people around the region about the safety of" the mall.  (See here.)

Fifth, there is a journarlistic interest. Viewers of the 6 o'clock news are entitled to accurate reporting but receive something less than that when television news journalists transform an accusation into a rape.  Viewers assume the journalists have gotten to the bottom of the story. When reporters say that "a woman was raped," viewers assume it's accurate.

Lessons: In the aftermath of the Hofstra debacle, mainstream media reporters spoke to Hofstra students and echoed the sentiments expressed here. WCBS-TV's Jennifer McLogan said journalists should have "proceeded with more caution."  Carol D’Auria of 1010 WINS agreed: "We just really need to move slower." She candidly added: “But I don’t see that happening.” The New York Post's Kieran Crowley noted: "I'm a mom with three kids in college; two girls and a boy. I wouldn't want my daughters to be the victim, but I wouldn't want my son railroaded either." Crowley placed the blame on law enforcement. "There is a flaw in our criminal justice system," she said, "and that's what this is about."

Where a woman has made a rape accusation and police are investigating it, reporters need to exercise far greater care in choosing their words. They need to eschew the impulse to reach for the jugular with a scary intro that will hook viewers.  The interests at stake here are far too serious. They need to choose every word with greater care than they normally do, and than they do now. Getting it wrong here has far more serious implications than getting a football score wrong.

Primarily, when a rape is being investigated, reporters must not give the impression either that a rape definitely occurred or that police have determined that a rape occurred.  At most, a news report should state that a woman told police she was raped, and that police are investigating. The report should treat the accusation with dignity, and, if appropriate, call for witnesses with any information about the allegation to come forward.